Jurisdiction Issue Defendant Has to Prove It Strictly 2008 Sc

8/3/2019 Jurisdiction Issue Defendant Has to Prove It Strictly 2008 Sc

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CASE NO.:Appeal (civil) 5060 of 2007

PETITIONER:Mahant Dooj Das (Dead) through LR

RESPONDENT:Udasin Panchayati Bara Akhara & Anr

DATE OF JUDGMENT: 01/05/2008

BENCH:P.P. Naolekar & Aftab Alam

JUDGMENT:J U D G M E N TREPORTABLE

CIVIL APPEAL NO. 5060 OF 2007

P.P. NAOLEKAR, J.:

1. The facts necessary for adjudicating the questioninvolved are that the plaintiff-appellant (for convenience hereinafterreferred to as "the plaintiff") filed a suit claiming decree forpossession over the properties/lands [21 Bighas, 8 Biswa KachhiBhumi (land) No. Khasra 27M and 28M and Bhumi (land) 1 Bigha, 3Biswa, 10 Biswanshi Kacchi No. Khasra 27M and 28M and Bhumi(land) 19 Bigha, 3 Biswa, 15 Biswansi Khasra No. 4M and Bhumi(land) 30 Bigha Kacchi No. Khasra 4M total Bhumi (land) 71 Bighas,15 Biswa, 5 Biswansi Kacchi situated at Bhupatwala Kalan, ParganaJwalapur, Distt. Saharanpur and houses and 4 boundary walls pakkaand well with wheels and brick-kiln, garden and tube-well with oilengine and tin shed etc. which have been situated on the abovementioned land presently Khasra No. 4/5 (4/27) 48/6/2(28/26 and48/28); Description of Boundary No. 1: East \026 Way, West \026 Road

Haridwar-Rishikesh, North \026 Land of Sohanlal Mistri, South \026 Nalaand after that boundaries of Mahant Sadhu Singh; Description ofBoundary No. 2: East \026 Road Haridwar-Rishikesh, South \026 Land ofShankaranand, North \026 Land of Brahamchari and after that Nala, West\026 Forest Land) mentioned in the plaint after adjudging the sale deeddated 5.5.1962 registered on 19.6.1962 invalid executed by BudhDass in favour of Udasin Panchayati Bara Akhara, defendant No.1-respondent No.1 (for convenience hereinafter referred to as"defendant No.1") to be void and cancelling the same. The suit wasfiled on the allegations that Mahant Tahal Dass was Udasin of Panthof Revered Shrichand. In the said Panth there is a custom that Mahantcannot marry and he is entitled to initiate a Chela. After the death ofMahant, his eldest chela Dooj Das succeeded to all rights and interestsin the properties of his Guru. It is also a custom in the Panth that on

the tenth day of the death of Guru there is a ceremony calledDassehra. Akhand Path of Guru Granth Saheb is performed and Bhogis offered and eldest chela of the deceased Guru is acknowledged asthe heir of the deceased, whereafter he is known as Mahant. MahantTahal Dass initiated the plaintiff-Dooj Das as his chela on 23.7.1937at the Dera of Bhetiwala, Tehsil Muktasar, District Ferozpur inaccordance with the custom, in the presence of respectable personsand from that day the plaintiff became the chela of Mahant TahalDass. Mahant Tahal Dass died on 5.12.1957 and the plaintiff beingthe eldest chela was recognized and acknowledged as successor of thedeceased Mahant and thereafter was known as Mahant Dooj Dass.The plaintiff succeeded to all rights, properties and assets of MahantTahal Dass. Meanwhile, before the death of Mahant Tahal Dass,defendants Prag Dass, Ishwar Dass and Hari Dass were also initiated


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as chelas by him. The plaintiff being the eldest chela, succeeded to allthe properties left by his Guru, according to the custom. MahantTahal Dass acquired the suit properties by permanent leasesmeasuring 71 Bighas, 15 Biswa and 15 Biswansi Kachi situated atBhupatwala Kalan, Pargana Jwalapur, Tehsil Roorkee, Distt.Saharanpur within the limits of Municipal Board, Hardwar. MahantTahal Dass was the permanent lessee of these lands and he was inoccupation thereof. He was cultivating the same through his men andsewaks. He was paying lagan also. After the death of Tahal Dass, the

plaintiff became the permanent lessee of all the lands. He also hadright therein as being the eldest chela, heir and successor of MahantTahal Dass. On the occasion of Ardh Kumbhi, the plantiff went toHardwar for the first time on 11.4.1968 after the death of his Guru tohave a dip in the holy Ganges on the sacred day along with his sewaksand there he learnt that one Budh Dass (since deceased) claimedhimself to be the chela of Mahant Tahal Dass and transferred therights under the leases to defendant No.1 through defendantNo.2/respondent No.2 (for convenience hereinafter referred to as"defendant No.2") and, therefore, he obtained a certified copy of thesale deed on 19.4.1968. Budh Dass was never initiated as chela byMahant Tahal Dass and, therefore, he had no right, title and interestover the suit lands. Defendants Nos. 1 and 2 did not derive any rightor title in the suit properties by the sale deed. The sale deed was in

collusion with defendants Nos. 1 and 2.

2. Defendants Nos. 1 and 2 filed their written statementdenying the custom alleged in the plaint. As per the defendants, theplaintiff was never initiated as the chela of Mahant Tahal Dass. Thelast rites of Mahant Tahal Dass were denied to have been performedby the plaintiff. However, the defendants admitted that Mahant TahalDass had properties at Bhittiwala, Sheikha, Govindgarh, Karamwala,Rampura and Bhupatwala (Hardwar). It is also admitted that MahantTahal Dass died in the year 1957 and the suit property belonged toTahal Dass on permanent leasehold rights. It is alleged that U.P.Urban Areas Zamindari Abolition and Land Reforms Act, 1956 isapplicable to the suit lands and under the Act, proceedings in respectof the lands cannot be initiated in civil court and as such civil court

has no jurisdiction to try the suit. It is further pleaded that thedefendants had purchased the suit properties bonafide for aconsideration of Rs.32,000/- from Budh Dass, who died three yearsbefore the institution of the suit. In the written statement, it wasalleged that Budh Dass, the transferor who was the chela of TahalDass, succeeded to the properties situated at Bhupatwala, Hardwarafter the death of his Guru Mahant Tahal Dass.

3. Defendant No.6 Hari Dass also contested the suit byfiling a separate written statement claiming therein the right, title andinterest in the suit property but lost in the trial court, in the first appealand Second Appeal No. 2713 of 1977 filed by him was withdrawn.Thus, in the present proceedings he is not the contesting party.4. The trial court decreed the suit of the plaintiff holding

that the plaintiff was initiated as the eldest chela of Mahant TahalDass according to the custom and the plaintiff became the heir andsuccessor in respect of the properties of Mahant Tahal Dass. BudhDass, the transferor of property to defendants Nos. 1 and 2 did notsucceed to the property at Bhupatwala at Hardwar owned by MahantTahal Dass. As per the trial courts finding, there never existed anyperson by the name Budh Dass nor had he ever succeeded to the rightsand interests of Mahant Tahal Dass, whatsoever to the suit properties;hence, Budh Dass was incompetent to execute the sale deed dated5.5.1962 in favour of defendants Nos. 1 and 2. It also appeared to thetrial court that the disputed sale deed dated 5.5.1962 was completely aforged and fictitious document. Consequently, the trial court set asideand cancelled the sale deed dated 5.5.1962 executed by Budh Dass infavour of defendants Nos. 1 and 2 and decreed the suit. As regards


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jurisdiction of the civil court to try the suit and the valuation put bythe plaintiff, it was held, while trying them as preliminary issue on13.10.1969, that the civil court had jurisdiction to try the suit.5. Aggrieved by the judgment and decree of the trial court,defendants Nos. 1, 2 and 6 filed appeals numbered as C.A.No.117 of1976 titled Hari Dass vs. Mahant Dwaj Dass & Ors. and C.A.No.118 of 1976 titled Udaseen Panchayati Bara Akhara & Anr. vs.Mahant Dwaj Dass and Others. The first appellate court held thatplaintiff was the eldest chela of Mahant Tahal Dass and was duly

installed as successor of the Mahant and he succeeded to theproperties of his Guru. Evidence on record did not establish theidentity of any Budh Dass to be the chela of Mahant Tahal Dass and,therefore, he did not succeed to the suit properties. As regards thequestion of jurisdiction of civil court, the first appellate court held thatthe suit property is situated within the municipal limits of Hardwarrecorded as Bhumidari land but the land in question was acquired forthe purposes of erecting buildings. The lessee in fact created a deraon the spot by erecting buildings, installing tube-wells etc. Section143 of the U.P. Land Reforms Act, 1950, was, therefore, attracted.The court further held that the cause of action for the purposes ofjurisdiction depends on the facts and circumstances of each case. Thereal controversy in the suit is right to the office of Mahantship.Cancellation of the sale deed is also directly involved. Determination

of the question of relinquishing the office of Mahantship is alsoinvolved. All these matters in controversy can only be decided by acompetent civil court and, therefore, lower court has rightly upheldthe jurisdiction of the civil court to try the suit. Consequently, C.A.Nos. 117/1976 and 118/1976 were dismissed and judgment and decreeof the trial court was confirmed.6. Defendants Nos. 1 and 2 preferred a second appeal before theHigh Court under Section 100 of the Code of Civil Procedurechallenging the judgment and decree of the first appellate court. On12.11.2002, the High Court admitted the appeal and the followingthree substantial questions of law were framed:"(1) Whether after enforcement of the U.P. Urban AreasZamindari Abolition and Land Reforms Act, 1956, the land insuit, stood vested with the State of U.P. by operation of law free

from all encumbrances and stood settled with the Appellants(Defendant No.1 and 2) exclusively? If so, whether the suitwas barred by Section 331 of the U.P. Zamindari Abolition andLand Reforms Act, 1950?

(2) Whether the suit was barred by law of limitation andwhether the plea of limitation can be raised at the stage ofsecond appeal in a situation when neither it was pressed beforethe Trial Court nor before the First Appellate Court?

(3) Whether the State of U.P. and the Gaon Sabha/GaonPanchayat, were the necessary parties? If so, was the suit liableto be dismissed for non-joinder of necessary parties?

On an application being filed by defendants Nos. 1 and 2, thefollowing order was passed by the High Court on 25.7.2005 :

"Heard learned counsel for the parties.

Learned counsel for the appellant/defendant, drew theattention of this Court to the application No.2741 of 2005,suggesting few more questions of law.

Already this Court has formulated the substantialquestion of law on 12.11.2002, with the observations that theappellant does not press other applications and rejected thesame. However, now few more questions have been suggested.Since this is an old appeal, which was instituted in the year1977, it is not just and proper to keep on framing the substantial


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questions of law, each day, after hearing. In view of the sub-section (5) of Section 100 of the Code of Civil Procedure, 1908,if any substantial question of law is found left out, this Courthas ample power to hear the parties on such questions and toanswer them. Therefore, this Court feels that instead of framingnew questions of law, it is better to proceed with the hearing ofthis old appeal and if any of the question of law is found left,the same would be answered by the Court, after hearing theparties. Learned counsel for the parties agreed that this appeal

may be listed on 29th August, 2005 for final hearing, as both ofthem are coming from Allahabad.

List this appeal for final hearing on 29th August, 2005."

The High Court by its impugned order dated 23.2.2006 answering thefirst substantial question of law has held that by virtue of theexpression "which have been so demarcated under Section 5 of theaforesaid Act" (i.e. U.P. Urban Areas Zamindari Abolition and LandReforms Act, 1956) (hereinafter referred to as "the 1956 Act"),contained in the notification, indicates that the demarcation was madebefore the notification under Section 8 of the 1956 Act was issued;that the land in question stood vested in the State of U.P. w.e.f.1.7.1963; that the suit being basically for declaration of the title and

the cancellation of the sale deed in respect of the agricultural areaunder the 1956 Act is an ancillary relief and the real question betweenthe parties is of title in respect of agricultural area covered under the1956 Act; and that in view of the provisions of Section 82 of the 1956Act read with Section 331 of the U.P. Zamindari Abolition and LandReforms Act, 1950 (hereinafter referred to as "the 1950 Act"), the suitbefore the civil court between the parties is barred by law. Thus, theHigh Court has held that the suit as it is filed by the plaintiff was notmaintainable before the civil court. As regards question No.2, theHigh Court has held that the suit filed in the civil court is withinlimitation but the suit before the revenue court would be barred bylimitation. Question No. 3 was decided in favour of the plaintiffholding that the question of non-joinder of the parties stands waivedby the defendants. The High Court neither framed the question of law

regarding right, title or interest in the suit property nor has disturbedthe findings of courts below on that issue. The High Court on thebasis of the decision of the first question of law has allowed theappeal and set aside the judgment and decree passed by the courtsbelow. The plaintiff is, therefore, before us in this appeal.7. It is submitted by Shri Nagendra Rai, learned senior counselappearing for the plaintiff (appellant herein) that the High Court hascommitted an error in holding that the land in question stood vestedunder the 1956 Act in the State and as such provisions of the 1956 Actare attracted and consequently the suit is required to be filed in therevenue court under Section 331 of the 1950 Act and not in civilcourt, which does not have jurisdiction to try the suit.8. It is further contended by Shri Rai that the relief claimed by theplaintiff was a decree for possession over the suit lands after

adjudging the sale deed dated 05.05.1962 registered on 19.06.1962executed by Budh Dass in favour of Udasin Panchayati Bara Akharaillegal and canceling the same. The overall reading of the plaintindicates that the main relief claimed is of cancellation of the saledeed and ancillary relief is delivery of possession of the suitproperties. As the effect of the sale deed had had to be got rid of byan appropriate adjudication, as a transaction could not be said to bevoid in law which is not required to be set aside, the suit, as it wasfiled, was cognizable by the civil court and not by the revenue court.The counsel urged that under Section 331(1-A) of the 1950 Act,which was incorporated in the 1956 Act, the objection to thejurisdiction of civil courts with respect to the suit shall be entertainedby the court, only, if the objection was taken in the court of firstinstance at the earliest possible opportunity and in all cases where the


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issues are settled at or before such settlement. It is further required tobe alleged and proved that entertainment of the suit results inconsequential failure of justice. Thus merely because the objectionhas been taken to the jurisdiction of the civil court at the first instanceunless a case of failure of justice is made out and findings recorded bythe court to that effect, civil courts jurisdiction could not be ousted inregard to the cause of action triable by the revenue court. The HighCourt has not arrived at any finding in regard to the consequentialfailure of justice and thus could not have dismissed the suit of the

plaintiff on the ground that the civil court had no jurisdiction.9. To counter, Shri Sakha Ram Singh, learned senior counsel forthe respondents submits that the land in question was a tenancy landand, therefore, shall be deemed to have been acquired under the 1956Act by the State, and the provisions of the 1956 Act would beattracted. Therefore, there is no illegality or infirmity in the judgmentof the High Court holding that the jurisdiction of the civil court isbarred.10. It is further submitted that by virtue of Section 82 of the 1956Act, the provision of Section 331(un-amended) has been inserted inthe 1956 Act whereas Section 331(1-A) has been amended in the 1950Act by insertion by U.P. Act No.4 of 1969 on 1.9.1969. The suit wasfiled on 03.07.1968. It is a settled principle of law that when certainprovisions from an existing Act have been incorporated into a

subsequent Act, no addition to the former Act, which is not expresslymade applicable to the subsequent Act, can be deemed to beincorporated in it. Section 331 of the 1950 Act has been inserted inthe 1956 Act by adoption, the provision as it stood at the time ofinsertion by adoption would be a provision applicable in the 1956 Actand not the amended provision of the original Act, namely, Section331(1-A), which was inserted in the original Act of 1950 on a laterdate and, therefore, there was no necessity to prove on the part of thedefendants that there was a consequential failure of justice caused bynot filing a suit in the appropriate forum. That apart, the suit would bebarred by limitation in the revenue court but would be maintainable inthe civil court, would itself is a proof of failure of justice. If the suit ispermitted to be continued in the civil court which would be withinlimitation, the defendants right to raise defence of suit before revenue

court is beyond limitation would be lost. It is also submitted by thelearned counsel that if the 1956 Act has no application to the suitlands, the cause of action in respect of the land would be governedunder the U.P. Tenancy Act, 1939 and on its application the suitwould have been maintainable before the revenue court and not beforethe civil court. It is urged by the learned counsel that in any case thecase requires to be remanded to the High Court for adjudicating otherquestions which arise from the judgment of first appellate court. TheHigh Court having expressed that in view of sub-section (5) ofSection 100 of the Code of Civil Procedure, 1908, if any substantialquestion of law is found left out, the court has ample power to hearthe parties on such questions and answer them.11. The first and the material issue which is required to beconsidered by this Court is whether the land in suit would be covered

and governed under the 1956 Act so as to apply the provisions ofSection 331 of the 1950 Act to oust the jurisdiction of the civil court.The decision of this issue would decide whether this Court is requiredto go into the other questions raised by the parties in this appeal.12. The Uttar Pradesh Urban Areas Zamindari Abolition and LandReforms Act, 1956 received the assent of the President on 7.3.1957and was published in the U.P. Gazette Extraordinary dated 12.3.1957.The Act was brought into force to provide for the abolition ofZamindari system in agricultural areas situated in urban areas of U.P.and for acquisition of the rights, title and interest of the intermediariesbetween the tiller of the soil and the State in such areas and forintroduction of the land reforms therein. Section 2(1) definesagricultural area which reads as under :-

"agricultural area" as respects any urban area means an


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area which, with reference to such date as the State Governmentmay notify in that behalf, is \026 (a) in the possession of or held or deemed to be held by anintermediary as sir, khudkasht or an intermediarysgrove;

(b) held as a grove by or in the personal cultivation of apermanent lessee in Avadh; or

(c) included in the holding of \026

(i) a fixed-rate tenant,(ii) an ex-proprietary tenant,(iii) an occupancy tenant,(iv) a tenant holding on special terms in Avadh,(v) a rent-free grantee,(vi) a grantee at a favourable rate of rent,(vii) a hereditary tenant,(viii) a grove-holder,(ix) a sub-tenant referred to in sub-section (4) ofSection 47 of the U.P. Tenancy Act, 1938; or(x) a non-occupancy tenant of land other than land

referred to in sub-section (3) of Section 30 of theU.P. Tenancy Act, 1939,

and is used by the holder thereof for purposes ofagriculture or horticulture;

Provided always that land which on the dateaforesaid is occupied by buildings not being"improvements" as defined in Section 3 of the U.P.Tenancy Act, 1939, and land appurtenant to suchbuildings shall not be deemed to be agricultural area.

(d) held on lease duly executed before the first day of July,1955 for the purposes of erecting buildings thereon; or

(e) held or occupied by an occupier.

"Explanation \026 An area, being part of the holding of a tenantshall not be deemed to have ceased to be agricultural area byreason merely that it has not been used, during the seven yearspreceding the commencement of this Act, for raising crops orother agricultural produce."

Chapter II provides for demarcation of agricultural areas. Therelevant provisions of Chapter II read as under :-

"3. Power to order demarcation of agricultural areas \026(1) The State Government may, with a view to acquisitionunder the provisions of this Act of the rights, title and interest

of intermediaries in urban areas, direct by notification in theofficial Gazette, that the agricultural area situated in any sucharea be demarcated.

(2) As soon as may after the publication of the notificationunder sub-section (1), the Demarcation Officer shall makeenquiries in the prescribed manner, and shall determine anddemarcate agricultural areas within the urban areas.

4. Publication of preliminary proposals and objectionsthereon \026 (1) The Demarcation Officer shall, within threemonths or such extended period as the State Government mayin any case fix; of the date of the notification under sub-section(1) of Section 3, submit his proposals with reasons therefor to


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the Commissioner who may make such modifications therein ashe may consider necessary.

(2) After the Commissioner has considered the saidproposals he shall publish a notice in the prescribed form in theGazette and in such other manner as may be prescribed to theeffect that the proposals as regards the demarcation ofagricultural areas have been formulated and are open toinspection at the places to be specified in the said notice.

(3) Any person or local authority interested may within threemonths of the date of publication of the notice under sub-section (2), file an objection on the proposals before suchofficer or authority and in such manner as may be prescribed.

5. Final demarcation \026 (1) After the expiry of the periodof three months mentioned in sub-section (3) of Section 4, theCommissioner shall proceed to decide the objections in themanner prescribed and then finally demarcate the agriculturalarea.

(2) After the Commissioner has finally demarcated theagricultural area under sub-section (1), he shall publish a notice

in the Gazette and in such other manner as may be prescribed tothe effect that the agricultural areas have been finallydemarcated and their details are open to inspection at places tobe specified in that notice.

(3) An appeal shall lie to the Board against the orders passedby the Commissioner under sub-section (1)."

13. Chapter III provides for acquisition of the interests ofintermediaries and its consequences. Section 8 under this Chapterreads as under:"8. Vesting of agricultural area in the State.- After theagricultural area has been demarcated under Section 5, the State

Government may, at any time, by notification in the officialGazette, declare that as from a date to be specified all suchareas situate in the urban area shall vest in the State and, asfrom the beginning of the date so specified all such agriculturalareas shall stand transferred to and vest except as hereinafterprovided, in the State free from all encumbrances." By a notification issued under Section 8 by Rajaswa Vibhag dated20.06.1963, the agricultural area in Haridwar demarcated underSection 5 has been vested with the State Government. The relevantportion of the notification issued reads as under :-

Rajaswa Vibhag Notification No.2653/1-A-168-60, dated June20, 1963, published in U.P. Gazette, Part 1, dated June 29,

1963, p.1217.

In exercise of the powers under Section 8 of the U.P. UrbanAreas Zamindari Abolition and Land Reforms Act, 1956 (U.P. ActNo. IX of 1957), the Governor of Uttar Pradesh is pleased to declarethat as from the first day of July, 1963, all agricultural areas in thefollowing urban areas of the State, which have been so demarcatedunder Section 5 of the aforesaid Act, shall vest in the State of UttarPradesh, and as from the beginning of that date, all such agriculturalareas shall stand transferred to, and vest, except as provided in thesaid Act, in the State free from all encumbrances :------------------------------------------------------------------------------------Serial No. Name of Urban Area District------------------------------------------------------------------------------------


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Meerut Division1. Rishikesh .. Municipality .. Dehra Dun.2. Hardwar Union .. Do .. Saharanpur3. Deoband .. Do .. Do\005 \005 \005.

14. By virtue of Section 8 after the agricultural area has beendemarcated under Section 5, the State government would issue anotification in the official gazette declaring that from specified date all

demarcated area situated in the urban area shall vest with the StateGovernment and from the date so specified all such agricultural areashall be transferred to and vest except otherwise provided, in the Statefree from all encumbrances. The purport of Section 8 is very clearthat the agricultural land falling in the urban area has to be demarcatedunder Section 5 and thereafter the notification shall be issued by theState Government in regard to the demarcated area in the urban areato have been vested in the State. Sections 3 to 5 lay down theprocedure for demarcation of the area for the purposes of acquisitionof right, title and interest of intermediaries in urban areas of theagricultural area. Under Section 3, the State Government shall issue anotification in the official gazette for the purposes of acquisition ofright, title and interest of intermediaries in urban areas and declaresuch area as demarcated area. After the publication of the notification

under sub-section (1) the Demarcation Officer shall make inquiries inthe prescribed manner and thereafter shall determine and demarcatethe agricultural area within the urban area. After this, under Section4, the Demarcation Officer would within three months or suchextended period as may be extended by the State Government, fromthe date of notification issued under sub-section (1) of Section 3,submit his proposal with a reason thereof to the Commissioner, theCommissioner may make such modifications in the demarcated areaas he may consider necessary. After the proposal is finalized by theCommissioner he shall publish a notice in the prescribed form in thegazette and in such other manner as may be prescribed, to the effectthat the proposals as regards demarcation of the agricultural areashave been formulated and are open to inspection at the place whichwould be specified in the published notice. Thereafter, any person

interested in such demarcation may within three months of thepublication of the notice under section sub-section (4) of Section 2could file an objection on the proposal before such officer or authorityin a manner provided therein. Section 5 lays down that after theexpiry of the period of three months of publication of notice theCommissioner shall decide the objections received and thereafter shallfinally demarcate the agricultural area. Sub-section (2) of Section 5lays down that after determination of the objections finally,demarcated agricultural area shall be published by notice in thegazette or in such other manner as may be prescribed to the effect thatfinal demarcation of the agricultural area in the urban area is madeand the details thereof are open to inspection at places specified in thenotice. On such notice being issued, sub-section (3) of Section 5provides for an appeal to the Board of Revenue against the order

passed by the Commissioner prescribing finally demarcatedagricultural area. Section 8 lays down that after the agricultural areain the urban area has been demarcated under Section 5 the StateGovernment shall notify it in the Official Gazette that such area isvested in the State from the date specified therein and all suchagricultural areas shall stand transferred and vested in the Stategovernment free from encumbrances. From the aforesaid provision, itis amply clear that elaborate procedure has been laid down before theagricultural area in the urban area is declared to be a demarcated areafor the purpose of vesting in the State free from encumbrances.Section 3 provides for a notice to the general public that a particularagricultural area in the urban area is being picked up for declaring thatarea to be demarcated area for the purposes of all right, title andinterest of intermediary to be vested with the State Government free


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from all encumbrances. After such notification the DemarcationOfficer has to apply his mind, make inquiries whether a particular areais to be declared as a demarcated area and thereafter submit hisproposal for the purposes of declaration of demarcated area before theCommissioner. The Commissioner is authorized to make amodification in the proposal and thereafter is called upon to publish anotice in the gazette or in any other manner as prescribed, that theproposal as regards demarcation of the agricultural area is formulatedand are open to inspection. This apparently is a tentative proposal

which is subject to the objection by any person or local authority. Ifany objection has been received within three months theCommissioner is called upon to decide those objections and thereafterpass a final order in regard to proposed demarcated area. Once theobjections are decided and the Commissioner has arrived at thefinding that a particular agricultural area in the urban area is to bedeclared as a demarcated area he shall publish a notice in the gazetteshowing the demarcated area which has been finally decided to be ademarcated area for the place. Sub-section (3) of Section 5 thereafterprovides for an appeal from the order of the Commissioner. Theagricultural area was only to be declared to be vested in the StateGovernment free from all encumbrances under Section 8 only aftersuch an agricultural area has been finally declared to be demarcatedarea.

15. In the present case, there is no evidence led by the defendantsthat the suit land had been declared as a demarcated area and the suitarea being declared to be such has vested with the State governmentunder Section 8 of the 1956 Act. The notification issued underSection 8 says that in exercise of powers of Section 8 of the 1956 Act,the Governor of U.P. declares that from 01.07.1963 all agriculturalareas in the following urban areas (which admittedly falls within theHardwar Union, District Saharanpur) of the then State of U.P. whichhas been demarcated under Section 5 of the Act shall stand vestedwith the State of U.P. and as from that day onwards all suchagricultural areas shall stand transferred to, and vested, except asprovided in the 1956 Act, in the State free from all encumbrances. Itis clear from this notification under Section 8 that the land which hasbeen demarcated under Section 5 in the Hardwar Union shall be

vested in the State free from all encumbrances. Unless and until it isshown that the land in suit has been declared as a demarcated area orfalls within the demarcated area, exercising the powers under Section5, it cannot be said that it has been vested in the State by virtue ofnotification issued under Section 8 on 20.6.1963. By 20.6.1963notification, it is only the demarcated area under Section 5 which hasbeen vested in the State. That does not necessarily means that the suitlands have been vested in the State In the absence of proof, it cannotbe said that the suit area is a demarcated area and thus vested in theState by issuance of the notification under Section 8 of the Act.16. In Abdul Waheed Khan v. Bhawani and Others, AIR 1966 SC1718, it was held that it is settled principle that it is for the party whoseeks to oust the jurisdiction of a civil court to establish his contentionand it is also equally well settled that a statute ousting the jurisdiction

of a civil court must be strictly constructed.In Sri Vedagiri Lakshmi Narasimha Swami Temple v. InduruPattabhirami Reddi, AIR 1967 SC 781, this Court held that underSection 9 of the Code of Civil Procedure, the courts shall havejurisdiction to try all suits of civil nature excepting suits of whichthere is a bar expressly or impliedly provided. It is well settledprinciple that a party seeking to oust jurisdiction of an ordinary civilcourt shall establish the right to do so.In Smt. Bismillah v. Janeshwar Prasad and Others, (1990) 1 SCC207, this Court has reiterated the principle laid down and said that it issettled law that exclusion of the jurisdiction of the civil court is not tobe readily inferred, but that such exclusion must either be explicitlyexpressed or clearly implied. The provisions of law which seek tooust the jurisdiction of civil court need to be strictly construed.


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In Sahebgouda (Dead) by LRs. and Others v. Ogeppa and Others,(2003) 6 SCC 151, this Court has held that it is well settled that aprovision of law ousting the jurisdiction of a civil court must bestrictly construed and onus lies on the party seeking to oust thejurisdiction to establish his right to do so.In Dwarka Prasad Agarwal (D) by LRs. v. Ramesh ChanderAgarwal and Others, (2003) 6 SCC 220, a 3-Judge Bench has heldthat Section 9 of the Code of Civil Procedure confers jurisdictionupon the civil courts to determine all disputes of civil nature unless

the same is barred under a statute either expressly or by necessaryimplication. Bar of jurisdiction of a civil court is not to be readilyinferred. A provision seeking to bar jurisdiction of a civil courtrequires strict interpretation. The court, it is well settled, wouldnormally lean in favour of construction, which would uphold retentionof jurisdiction of the civil court. The burden of proof in this behalfshall be on the party who asserts that the civil courts jurisdiction isousted.17. Thus, from the aforesaid decisions, it is now well establishedprinciple of law that the ouster of jurisdiction of a civil court is notreadily accepted and heavy burden of proof lies on the party whoasserts that the civil courts jurisdiction is ousted and some othercourt, tribunal or authority has been vested with jurisdiction.18. For application of the provisions of Section 331 of the 1950 Act

which has been incorporated in the 1956 Act, it was necessary for thedefendants to prove that the suit lands had been demarcated by theState Government by taking necessary steps as contemplated underSections 3, 4 and 5 of the 1956 Act. Sections 3, 4 and 5, as alreadyheld by us, provide a complete code for demarcation of theagricultural area after giving appropriate hearing to the party affectedby following the procedure laid down therein, it also provides for anappeal to the Board of Revenue. It is only after the area is declared asdemarcated area, Section 8 will be attracted and the notification to thateffect would be issued in regard to and in respect of such declareddemarcated area to be vested in the State Government. Unless theland is vested in the State Government, the provisions of Section 331of the 1956 Act would have no application to oust the jurisdiction ofthe civil court.

19. In the present case, no evidence has been led by the defendantson whom heavy burden lies to prove the fact that the suit lands weredeclared demarcated. Notification under Section 8 which itself saysthat the demarcated area has been vested in the State Government,would not be given a meaning as if the suit lands had also beendemarcated and thus stood vested in the State Government by virtueof the notification issued under Section 8 of the 1956 Act.20. The defendants have claimed ouster of the civil courtsjurisdiction only on the basis of Section 331 of the 1950 Actincorporated in the 1956 Act. The defendants having failed to provethe applicability of that provision to the area in the suit, civil courtsjurisdiction cannot be said to have been ousted and vested in therevenue court.21. The learned senior counsel for the respondents for the first time

before this Court tried to raise the question that the suit as it was filed,if not barred under the 1956 Act, is competent to be heard by therevenue court by virtue of the U.P. Tenancy Act, 1939 which was inforce prior to the enforcement of the 1950 Act, the civil court wouldnot have any jurisdiction to try the suit of the plaintiff. We cannotpermit this new plea, which does not appear to be a pure question oflaw to be raised for the first time at the time of hearing of the appealin this Court. The question of applicability of some other law wasneither raised in the written statement nor before the courts below.22. The High Court has framed only three substantial questions oflaw. Neither any other question of law has been framed by the HighCourt nor any other question decided by the courts below has been putto challenge by framing substantial question of law in regard theretoat the time of or before arguments before the High Court. Thus, the


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finding arrived at, that the plaintiff was initiated as the eldest chela ofMahant Tahal Dass according to the custom and being the eldest chelawas heir and successor in respect of the suit property of Mahant TahalDass and that Budh Dass did not succeed to the property ofBhupatwala (Hardwar) has attained finality.23. It is contended by the learned senior counsel for therespondents herein that since the High Court has left open theconsideration of substantial questions of law in exercise of the powersunder sub-section (5) of Section 100 of the Code of Civil Procedure

(CPC) and, therefore, the matter requires remand, cannot becountenanced with. There is nothing on record that the High Courthas exercised the powers under proviso to sub-section (5) of Section100, CPC. The power of the High Court to hear an appeal on thequestion of law not formulated is conferred by virtue of proviso tosub-section (5) of Section 100, CPC, but to apply the provision ofproviso it is a necessary condition to be satisfied that the High Courtfeels satisfied that the case involves such question on which thehearing has to given to the parties although such substantial questionof law has not been framed and secondly the High Court records itsreasons for its satisfaction. [See Santosh Hazari v. PurushottamTiwari (Dead) by LRs., AIR 2001 SC 965]. Under the proviso toSection 100(5), CPC, it is a necessary condition that the court issatisfied that the case involves a substantial question of law and not

merely a question of law, and the Court must record the reasonpermitting the substantial question of law to be raised.In Kshitish Chandra Purkait v. Santosh Kumar Purkait and Others,AIR 1997 SC 2517, this Court held in para 7 as under:"\005We would only add that (a) it is the duty cast upon the HighCourt to formulate the substantial question of law involved inthe case even at the initial stage; and (b) that in (exceptional)cases, at a later point of time, when the Court exercises itsjurisdiction under the proviso to sub-section (5) of Section 100,C.P.C. in formulating the substantial question of law, theopposite party should be put on notice thereon and should begiven a fair or proper opportunity to meet the point. Proceedingto hear the appeal without formulating the substantial questionof law involved in the appeal is illegal and is an abnegation or

abdication of the duty cast on Court; and even after theformulation of the substantial question of law, if a fair or properopportunity is not afforded to the opposite side, it will amountto denial of natural justice. The above parameters within whichthe High Court has to exercise its jurisdiction under Section100, C.P.C. should always be borne in mind. \005" In Gian Dass v. Gram Panchayat, Village Sunner Kalan andOthers, (2006) 6 SCC 271, this Court in para 13 has held as under:"\005 The proviso is applicable only when any substantialquestion of law has already been formulated and it empowersthe High Court to hear, for reasons to be recorded, the appeal onany other substantial question of law. The expression "on anyother substantial question of law" clearly shows that there must

be some substantial question of law already formulated andthen only another substantial question of law which was notformulated earlier can be taken up by the High Court forreasons to be recorded, if it is of the view that the case involvessuch question." 24. From the aforesaid decisions of this Court, it is apparent thatthe High Court cannot deal with the issues unless a substantialquestion of law is framed by it. It appears that no other question thanthe questions of law already framed by the High Court has been raisedbefore the High Court nor the High Court has recorded its satisfactionthat apart from the questions of law already framed any othersubstantial question of law has arisen nor the plaintiff was put tonotice that such other substantial question of law has arisen in the case


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to be heard.25. From the aforesaid, it cannot be said that any other substantialquestion of law than already framed by the High Court has either beenframed or has been left open by the High Court to be adjudicated at alater stage. No case is made out for remanding the matter to the HighCourt to hear the same on non-existing substantial question of law.As we have already held that the defendants on whom the burden liesto prove the ouster of the civil court has failed to discharge its burdenand applicability of the 1956 Act to the suit lands has not been proved,

no other questions argued by the parties are required to be decided byus.26. For the aforesaid reasons, we hold that the civil court hasrightly exercised its jurisdiction in deciding the matter and the HighCourt after holding all the issues in favour of the plaintiff haserroneously dismissed the suit of the plaintiff holding that it wasbeyond competence of the civil court. The judgment of the HighCourt so far as it holds that the civil court has no jurisdiction andreversal of the decree passed by the appellate court, is thereforerequired to be set aside. Accordingly, the High Courts judgment isset aside and the decree passed by the first appellate court isconfirmed. The appeal is allowed with costs quantified atRs.10,000/-.

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Jurisdiction Issue Defendant Has to Prove It Strictly 2008 Sc